Annual Survey of South African Law: Most Recent Articleshttp://journals.co.za/content/journal/ju_assal?TRACK=RSS
Please follow the links to view the content.Table of caseshttp://journals.co.za/content/ju_assal/2013/1/EJC167924?TRACK=RSS
<div><p>Table of cases</p></div>Tue, 01 Jan 2013 00:00:00 GMThttp://journals.co.za/content/ju_assal/2013/1/EJC167924?TRACK=RSS2013-01-01T00:00:00ZTable of statuteshttp://journals.co.za/content/ju_assal/2013/1/EJC167925?TRACK=RSS
<div><p>Table of statutes</p></div>Tue, 01 Jan 2013 00:00:00 GMThttp://journals.co.za/content/ju_assal/2013/1/EJC167925?TRACK=RSS2013-01-01T00:00:00ZThe administration of justicehttp://journals.co.za/content/ju_assal/2013/1/EJC167923?TRACK=RSS
<div><p>South Africa lost two Chief Justices in late 2012 and mid-2013. Arthur Chaskalson, who served as President of the Constitutional Court from 1994 to 2001 and Chief Justice from 2001 to 2005, passed away on 1 December 2012. Among many achievements and accolades, he was a member of the defence team in the Rivonia Trial of 1963 and was one of the founders of the Legal Resources Centre in 1979. (G Budlender 'In Memoriam: The late former Chief Justice Arthur Chaskalson' (2013) 26 part 1 April Advocate 8-10). Pius Nkonzo Langa succeeded Athur Chaskalson as Chief Justice in 2005, having served as Deputy Chief Justice from 2001. He retired in October 2009 and passed away on 24 July 2013. Justice Langa was a founding member of the National Association of Democratic Lawyers (NADEL). He was among the first judges appointed to the newly created Constitutional Court and served with great distinction. (Moseneke 'Public power on behalf of the people' (2013) 26 part 3 December Advocate 27-8).</p></div>Tue, 01 Jan 2013 00:00:00 GMThttp://journals.co.za/content/ju_assal/2013/1/EJC167923?TRACK=RSSJason Brickhill, Hugh Corder, Dennis Davis and Gilbert Marcus2013-01-01T00:00:00ZAdministrative lawhttp://journals.co.za/content/ju_assal/2013/1/EJC167922?TRACK=RSS
<div><p>There was no legislation in the field of administrative law during the period under review.</p></div>Tue, 01 Jan 2013 00:00:00 GMThttp://journals.co.za/content/ju_assal/2013/1/EJC167922?TRACK=RSSDanie Brand and Melanie Murcott2013-01-01T00:00:00ZAdmiralty lawhttp://journals.co.za/content/ju_assal/2013/1/EJC167921?TRACK=RSS
<div><p>No significant statutes were brought into force during the year under review. The training and certification of seafarers was kept abreast of international developments by way of regulation and various marine notices and guidance notes were issued by the South African Maritime Safety Authority ('SAMSA') that are of importance to seafarers, especially in relation to their employment, safety and certification. These marine notices and guidance notes can play a significant role in criminal and civil proceedings.</p></div>Tue, 01 Jan 2013 00:00:00 GMThttp://journals.co.za/content/ju_assal/2013/1/EJC167921?TRACK=RSSHilton Staniland, Hilton Staniland and Hilton Staniland2013-01-01T00:00:00ZCivil and constitutional procedure and jurisdictionhttp://journals.co.za/content/ju_assal/2013/1/EJC167920?TRACK=RSS
<div><p>Of particular importance to civil procedure is the ConstitutionSeventeenth Amendment Act, 2012, assented to on 1 February2013 (GN 72 <span class="jp-italic">GG</span> 36128 of 1 February 2013). This Act amends the Constitution of the Republic of South Africa, 1996, to: further define the role of the Chief Justice as head of the judiciary with the responsibility to establish and monitor norms and standards for the exercise of the judicial functions of all courts (s 1); amends s 166 of the Constitution to provide for a single High Court of South Africa (s 2); amends s 167 of the Constitution to elevate the Constitutional Court to the apex court in all matters (not only constitutional matters (s 3); and regulates the jurisdiction of the Supreme Court of Appeal (s 5). Consequently, an appeal in non-constitutional matters may now be heard by the Constitutional Court if this court grants leave to appeal on the ground that 'the matter raises an arguable point of law of general public importance which ought to be considered' by the Constitutional Court (s 167(3)<span class="jp-italic">(a)</span>(iii) of the Constitution). In contrast, the Supreme Court of Appeal may decide only appeals and issues connected with appeals (and any matter referred to it in terms of legislation) in any matter arising from the High Court or a court of similar status, except in respect of labour and competition matters. The final appeal, therefore, no longer lies with the Supreme Court of Appeal which court now has only intermediate appeal powers (s 4, amending s 168 of the Constitution).</p></div>Tue, 01 Jan 2013 00:00:00 GMThttp://journals.co.za/content/ju_assal/2013/1/EJC167920?TRACK=RSSEstelle Hurter2013-01-01T00:00:00ZConflict of lawshttp://journals.co.za/content/ju_assal/2013/1/EJC167919?TRACK=RSS
<div><p>No primary legislation in this field was promulgated during 2013.</p></div>Tue, 01 Jan 2013 00:00:00 GMThttp://journals.co.za/content/ju_assal/2013/1/EJC167919?TRACK=RSSChristian Schulze2013-01-01T00:00:00ZConstitutional lawhttp://journals.co.za/content/ju_assal/2013/1/EJC167918?TRACK=RSS
<div><p>There was no legislation in the field of constitutional law during the period under review.</p></div>Tue, 01 Jan 2013 00:00:00 GMThttp://journals.co.za/content/ju_assal/2013/1/EJC167918?TRACK=RSSMichael Bishop and Jason Brickhill2013-01-01T00:00:00ZConstitutional property lawhttp://journals.co.za/content/ju_assal/2013/1/EJC167917?TRACK=RSS
<div><p>Following upon the much criticised draft Expropriation Bill 2008 of 26 March 2008, a further draft Expropriation Bill was released in March 2013 for public comment (Department of Public Works Draft Expropriation Bill [B-2013] GN 234, <span class="jp-italic">GG</span> 36269 of 15 March 2013), together with an <span class="jp-italic">Explanatory memorandum</span> (<span class="jp-italic">Draft Expropriation Bill, 2013, - Explanatory memorandum</span>, available at http://www.publicworks.gov.za/PDFs/Explanatory%20memorandum%20on%20the%20draft%20Expropriation%20Bill%20(2013-03-15).pdf). The preamble aligns the Bill with constitutional principles and requirements and indicates that the purpose is to replace the existing Expropriation Act 63 of 1975 with new legislation that is consistent with the expropriation provisions in ss 25(2) and 25(3) of the Constitution of the Republic of South Africa, 1996, (as well as with ss 9 and 33 of the Constitution and the Promotion of Administrative Justice Act 3 of 2000 ('PAJA')).</p></div>Tue, 01 Jan 2013 00:00:00 GMThttp://journals.co.za/content/ju_assal/2013/1/EJC167917?TRACK=RSSA.J. Van Der Walt2013-01-01T00:00:00ZCompany law and stock exchangeshttp://journals.co.za/content/ju_assal/2013/1/EJC167916?TRACK=RSS
<div><p>There was no legislation affecting this area of the law during the period under review.</p></div>Tue, 01 Jan 2013 00:00:00 GMThttp://journals.co.za/content/ju_assal/2013/1/EJC167916?TRACK=RSSNatania Locke, Irene-Marie Esser and Irene-Marie Esser2013-01-01T00:00:00ZCriminal lawhttp://journals.co.za/content/ju_assal/2013/1/EJC167915?TRACK=RSS
<div><p><span class="jp-bold">Prevention of and Treatment for Substance Abuse Act 70 Of 2008</span>
<hr></hr>
This Act, which is aimed at establishing a comprehensive national response to the combating of the scourge of substance abuse, commenced on 31 March 2013. In terms of section 63, read with section 52 of the Act, it is an offence to obstruct or hinder a police official in the exercise of any power relating to the location and apprehension of an absconder from a treatment centre.</p></div>Tue, 01 Jan 2013 00:00:00 GMThttp://journals.co.za/content/ju_assal/2013/1/EJC167915?TRACK=RSSS.V. Hoctor2013-01-01T00:00:00ZCriminal procedure and sentencinghttp://journals.co.za/content/ju_assal/2013/1/EJC167914?TRACK=RSS
<div><p><span class="jp-bold">Criminal Law (Forensic Procedures) Amendment Act 6 of 2010</span>
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The Criminal Law (Forensic Procedures) Amendment Act 6 of 2010 came into operation on 18 January 2013 (GG 36080). This Act will amend the Criminal Procedure Act 51 of 1977 by inserting ss 36A, 36B and 36C in Chapter 3 of the Act. In terms of these new provisions it will now be compulsory for police officials to take the fingerprints of certain categories of persons. The South African Police Service will also be able to retain and store these fingerprints and body-prints on a database, and the prints may also be used for the purposes of comparative (and cold-case) searches. This Amendment Act further provides for the integrity, operating procedures and general management of these databases.</p></div>Tue, 01 Jan 2013 00:00:00 GMThttp://journals.co.za/content/ju_assal/2013/1/EJC167914?TRACK=RSSAndra Le Roux-Kemp, Andra Le Roux-Kemp and Andra Le Roux-Kemp2013-01-01T00:00:00ZEnvironmental lawhttp://journals.co.za/content/ju_assal/2013/1/EJC167913?TRACK=RSS
<div><p><span class="jp-bold">National Environmental Management Laws Amendment Act 14 of 2013</span>
<hr></hr>
This Act amends several environmental Acts. An earlier Bill contained amendments to the National Environmental Management Act 107 of 1998 ('NEMA') in relation to the regulation of mining, but these aspects have since been included in a separate Bill. First, the Act amends the National Environmental Management: Biodiversity Act 10 of 2004. Some of the more noteworthy amendments are: section 51, setting out the purpose of the chapter dealing with threatened or protected species, now contains an additional purpose which is to 'provide for the regulation of threatened or protected indigenous species to ensure that the utilisation of these species is managed in an ecologically sustainable manner' (s 3). Express provision has now been made for a purpose which was previously not provided for explicitly, as a response to the judgment in <span class="jp-italic">SA Predator Breeders Association and Others v Minister of Environmental Affairs and Tourism</span> [2011] 2 All SA 529 (SCA), where the court found 'canned hunting' regulations invalid because they did not fit within the legislative objective of the Act which is the protection of species, as opposed to their sustainable use.</p></div>Tue, 01 Jan 2013 00:00:00 GMThttp://journals.co.za/content/ju_assal/2013/1/EJC167913?TRACK=RSSMichael Kidd2013-01-01T00:00:00ZFamily lawhttp://journals.co.za/content/ju_assal/2013/1/EJC167912?TRACK=RSS
<div><p><span class="jp-bold">South African Post Office SOC Ltd Amendment Act 38 of 2013</span>
<hr></hr>
Section 5 and the Schedule to the South African Post Office SOC Ltd Amendment Act 38 of 2013, amend the Post and Telecommunication-related Matters Act 44 of 1958 (formerly the Post Office Act 44 of 1958). In terms of the amendments, the pension interest of a member of the Post Office Retirement Fund is deemed to be part of his or her assets on divorce, and the non-member spouse's share of the pension interest can be paid to the non-member after divorce. These amendments bring the position in respect of the Post Office Retirement Fund in line with that which applies to pension funds falling under the Pension Funds Act 24 of 1956 and the Government Employees Pension Law, 1996. The Amendment Act, which arose from the order of unconstitutionality made in <span class="jp-italic">Ngewu v Post Office Retirement Fund</span> 2013 (4) BCLR 421 (CC), came into operation on 27 January 2014 (Proc 53 <span class="jp-italic">GG</span> 37269 of 27 January 2014). <span class="jp-italic">Ngewu</span> and its sequel, which probably hastened the coming into operation of the Amendment Act, are discussed below.</p></div>Tue, 01 Jan 2013 00:00:00 GMThttp://journals.co.za/content/ju_assal/2013/1/EJC167912?TRACK=RSSJacqueline Heaton2013-01-01T00:00:00ZFinancial institutionshttp://journals.co.za/content/ju_assal/2013/1/EJC167911?TRACK=RSS
<div><p> Two important Acts of Parliament that impact on financial institutions came into effect during the course of 2013. These are the Credit Rating Services Act 24 of 2012 and the Financial Markets Act 19 of 2012. Both statutes were discussed in detail in the 2012 edition of the <span class="jp-italic">Annual Survey</span> (see Natania Locke & Irene-marie Esser 'Corporate Law (Including Stock Exchanges)' 2012 <span class="jp-italic">Annual Survey</span> 200 ff). The cursory comments on these two Acts, provided below, serve to highlight the relevance of these two Acts for financial institutions in general.</p></div>Tue, 01 Jan 2013 00:00:00 GMThttp://journals.co.za/content/ju_assal/2013/1/EJC167911?TRACK=RSSW.G. Schulze2013-01-01T00:00:00ZGeneral principles of contracthttp://journals.co.za/content/ju_assal/2013/1/EJC167910?TRACK=RSS
<div><p>There was no relevant legislation during the period under review.</p></div>Tue, 01 Jan 2013 00:00:00 GMThttp://journals.co.za/content/ju_assal/2013/1/EJC167910?TRACK=RSSRobert Sharrock2013-01-01T00:00:00ZInsolvency lawhttp://journals.co.za/content/ju_assal/2013/1/EJC167909?TRACK=RSS
<div><p><span class="jp-bold"><span class="jp-italic">Transactions on an exchange (s 35A)</span></span>
<hr></hr>
The insolvent may not yet have performed his contractual obligations when his estate is sequestrated. The contract continues and is neither suspended nor terminated. This general rule at common law will be discussed in more detail below (see 'Effect of insolvency on uncompleted contracts <span class="jp-italic">The general principle at common law</span>').</p></div>Tue, 01 Jan 2013 00:00:00 GMThttp://journals.co.za/content/ju_assal/2013/1/EJC167909?TRACK=RSSAlastair Smith2013-01-01T00:00:00ZInsurance lawhttp://journals.co.za/content/ju_assal/2013/1/EJC167908?TRACK=RSS
<div><p>No primary legislation on insurance law was passed in 2013.</p></div>Tue, 01 Jan 2013 00:00:00 GMThttp://journals.co.za/content/ju_assal/2013/1/EJC167908?TRACK=RSSJ.P. Van Niekerk2013-01-01T00:00:00ZIntellectual property lawhttp://journals.co.za/content/ju_assal/2013/1/EJC167907?TRACK=RSS
<div><p>The Intellectual Property Laws Amendment Act 28 of 2013 was assented to by the President and published for general information (GN 996 <span class="jp-italic">GG</span> 37148 of 10 December 2013). The Act recognises and protects certain types of traditional knowledge within the current intellectual property legal framework. The Act will come into operation on a date to be fixed by the President by proclamation in the <span class="jp-italic">Gazette</span> (s 15).</p></div>Tue, 01 Jan 2013 00:00:00 GMThttp://journals.co.za/content/ju_assal/2013/1/EJC167907?TRACK=RSSRoshana Kelbrick and Coenraad Visser2013-01-01T00:00:00ZLabour lawhttp://journals.co.za/content/ju_assal/2013/1/EJC167906?TRACK=RSS
<div><p>The Basic Conditions of Employment Amendment Act 20 of 2013 and its regulations that were published on 29 August 2014 came into operation on 1 September 2014 (GN 987 in <span class="jp-italic">GG</span> 37139 of 1 September 2014). The Employment Equity Act 55 of 1998 ('EEA') has been amended by the Employment Equity Amendment Act 47 of 2013 (GN R16 in <span class="jp-italic">GG</span> 37238 of 16 January 2014). Although the Labour Relations Amendment Bill, 2012, was predicted to come into law in mid-2013, it was only assented to by the President on 18 August 2014 (See the Proclamation of the Labour Relations Amendment Act 6 of 2014 in <span class="jp-italic">GG</span> 37921 of 18 August 2014). Although these amendments will impact on many facets of employment law, the legislation only became effective in 2014 and will be discussed in 2014 <span class="jp-italic">Annual Survey</span>. Otherwise, there was no significant legislation relevant to this field of law during the period under review.</p></div>Tue, 01 Jan 2013 00:00:00 GMThttp://journals.co.za/content/ju_assal/2013/1/EJC167906?TRACK=RSSJohn Grogan2013-01-01T00:00:00ZThe law of delicthttp://journals.co.za/content/ju_assal/2013/1/EJC167905?TRACK=RSS
<div><p>No legislation dealing with the law of delict was adopted during the period under review.</p></div>Tue, 01 Jan 2013 00:00:00 GMThttp://journals.co.za/content/ju_assal/2013/1/EJC167905?TRACK=RSSJohann Neethling and Johan Potgieter2013-01-01T00:00:00ZThe law of evidencehttp://journals.co.za/content/ju_assal/2013/1/EJC167904?TRACK=RSS
<div><p>The Criminal Law (Forensic Procedures) Amendment Act 6 of 2010 came into operation on 18 January 2013. The only direct evidence provision that it amends is section 225. The amendment has limited substance except for the introduction of the word 'body prints' (see below). Section 225 retains the provision that non-compliance with the procedures set out in the Act, or the fact that the forensic evidence was obtained against the wishes of the accused, will not make the evidence inadmissible. Fortunately, the admission of evidence obtained in a manner that infringes any of the accused's constitutional rights will remain to be excluded in terms of section 35(5) of the Constitution.</p></div>Tue, 01 Jan 2013 00:00:00 GMThttp://journals.co.za/content/ju_assal/2013/1/EJC167904?TRACK=RSSPamela-Jane Schwikkard2013-01-01T00:00:00ZThe law of leasehttp://journals.co.za/content/ju_assal/2013/1/EJC167903?TRACK=RSS
<div><p>The explanatory summary of the Rental Housing Amendment Bill, 2013, was published in General Notice 1126 <span class="jp-italic">GG</span> 37050 of 19 November 2013.</p></div>Tue, 01 Jan 2013 00:00:00 GMThttp://journals.co.za/content/ju_assal/2013/1/EJC167903?TRACK=RSSPhilip Stoop2013-01-01T00:00:00ZLaw of negotiable instrumentshttp://journals.co.za/content/ju_assal/2013/1/EJC167902?TRACK=RSS
<div><p>There was no legislation directly affecting this field of the law during the period under review.</p></div>Tue, 01 Jan 2013 00:00:00 GMThttp://journals.co.za/content/ju_assal/2013/1/EJC167902?TRACK=RSSJ.T. Pretorius and J.T. Pretorius2013-01-01T00:00:00ZLaw of personshttp://journals.co.za/content/ju_assal/2013/1/EJC167901?TRACK=RSS
<div><p>In terms of the Child Justice Act 75 of 2008, a child who is accused of having committed a crime may be diverted away from formal court procedures even though he or she has the capacity to incur criminal liability (ss 41(1) and 49(1)(b)). This diversion may only be to an accredited diversion programme and diversion service provider (s 56(1) read with the definition of 'diversion' in s 1). In September 2013, the Minister of Social Development published the names and details of entities that have been accredited to provide diversion programmes and diversion services in various provinces (GN 686 <span class="jp-italic">GG</span> 36843 of 13 September 2013).</p></div>Tue, 01 Jan 2013 00:00:00 GMThttp://journals.co.za/content/ju_assal/2013/1/EJC167901?TRACK=RSSJacqueline Heaton2013-01-01T00:00:00Z